in 

-tf 

03 

o 

LO 
O 


BUSHROD  WASHINGTON, 


^ 


Damna  tamen  celeres  reparant  caelestia  lunae 

Nos,  ubi  decidimus, 
Quo  pater  Aeneas,  quo  dives  Tullus  et  Ancus, 

Pulvis  et  umbra  suraus. 


PHILADELPHIA: 

PRINTED  BY  C.  SHERMAN  &  SOX. 
1858. 


MEMORANDUM. 


UPON  the  death  of  Judge  Washington,  the  late  Hon.  Joseph 
Hopkinson,  the  District  Judge  at  that  time,  delivered  an  Eulogium 
upon  him,  at  the  request  of  a  Committee  of  the  Bar  of  Philadelphia. 
The  Discourse  was  very  just  and  expressive  in  its  praise,  and  quite 
pointed  in  noticing  Judge  Washington's  calmness  and  fearlessness 
at  a  time  of  high  excitement.  He  illustrated  these  qualities  by  a 
particular  statement  of  The  United  States  v.  Bright,  in  April,  1809, 
a  case  in  which  Brigadier-General  Bright  was  indicted,  convicted, 
sentenced,  and  sent  to  prison,  for  obstructing,  with  an  armed  military 
force,  by  the  express  orders  of  the  Governor  of  this  Commonwealth, 
expressly  authorized  by  a  public  law  of  the  State,  the  final  process  of 
the  District  Court  of  the  United  States,  issued  in  obedience  to  a 
mandate  from  the  Supreme  Court  at  Washington.  The  military 
body  had  been  evaded  by  the  Marshal,  who  executed  his  process,  and 
the  Governor  then  succumbed,  and  paid  the  amount  of  the  execution. 
The  supreme  authority  being  thus  enforced,  a  pardon  by  the  Presi 
dent  was  presented  to  the  Brigadier-General  at  the  prison  door.  The 
eulogist,  in  strong  but  general  terms,  also  spoke  of  Judge  Washing 
ton's  "unrivalled  talents  upon  the  Bench;"  but,  probably  to  abridge 
the  discourse,  or  to  give  place  for  a  full  detail  and  application  of  the 
prosecution  above  mentioned,  he  omitted  to  analyze  or  to  distinguish 
some  other  peculiar  and  clearly-defined  characteristics  of  his  subject, 
which  the  writer  thinks  of  sufficient  interest  to  present  in  the  present 
form.  No  one,  perhaps,  was  better  acquainted  with  these  character 
istics,  than  Judge  Hopkinson,  or  could  have  described  them  better, 
if  it  had  coincided  with  the  plan  of  his  Eulogium. 

H.  B. 


BUSHROD  WASHINGTON. 


MY  acquaintance  with  Judge  Washington  began  in 
January,  1799,  when  he  first  attended  the  Supreme 
Court  of  the  United  States  as  an  Associate  Justice. 
The  Supreme  Court  then  held  its  annual  Session  in 
the  City  of  Philadelphia,  the  seat  of  the  Federal 
Government.  Judge  Washington's  commission  by 
President  Adams  was  dated  the  20th  December,  1798. 
He  was  at  that  time  thirty-six  years  old,  his  birth  in 
Virginia  having  taken  place  in  or  about  the  year 
1762.  He  died  in  Philadelphia,  on  the  26th  Novem 
ber,  1829. 

As  I  knew  him  well,  and  bore  to  him  as  true  honor 
and  reverence  as  to  any  Judge  I  have  ever  known,  I 
wish  to  discharge  a  part  of  my  debt  to  him,  by  re 
cording  my  love  for  his  virtues,  and  my  admiration  of 
his  remarkable  judicial  qualities.  So  infirm  is  the 
hold  that  even  an  eminent  Judge  takes  of  the  heart 
or  memory  of  the  country,  or  of  the  Bar  of  his  own 
Court,  that,  before  the  lapse  of  thirty  years,  his  vene 
rable  shade  has  been  effaced  by  new  lights,  in  per- 


haps  shorter  time  to  grow  dim  and  to  be  effaced  by 
others,  and  so  on  continually,  a  succession  of  crescent 
and  wane,  like  the  moon,  but  without  repair  and 
renewal.  "  So,  and  more  also,"  it  happens  to  the  pro 
fessors  of  the  law.  The  ablest  Judge,  and  the  best 
lawyer  in  Pennsylvania  that  I  have  known,  have 
passed  from  splendor  to  almost  complete  obscuration, 
in  less  than  half  the  term  of  a  single  life.  Nothing 
remains  of  them  but  what  is  absorbed  into  the  body 
of  the  law  from  law  reports,  and  merged  in  the  un- 
distinguishing  mass,  or  is  reposited  in  the  hearts  of  a 
very  few  survivors,  who  are  soon  to  go  to  them,  and 
to  be  forgotten  with  them.  How  much,  then,  does  it 
concern  them  all,  great  and  little,  to  think  less  of  fame 
and  name,  and  more  of  the  "  works  that  do  follow 
them." 

As  I  came  in  one  day  to  dinner  at  my  lodging- 
house,  in  North  Third  Street,  I  perceived  sitting  in 
the  parlor  a  new  comer,  of  about  the  common  height, 
of  slight  figure,  sallow  complexion,  and  straight  brown 
hair,  the  features  of  his  face  generally  small,  one  of 
his  eyes  apparently  sightless,  and  the  other  having 
more  than  the  fire  of  an  ordinary  pair.  His  chin  was 
nearly  or  quite  beardless,  and  it  was  to  this,  rather  than 
to  his  other  traits,  that  he  owed  the  expression  there 
was  about  him,  of  being  an  old  young  man,  or  a  young 
old  man — it  was  difficult  at  first  to  tell  which — an 
expression  that  to  some  degree  continued  till  his 


death.  This  was  BUSHROD  WASHINGTON,  a  nephew, 
and  to  some  extent  the  Sieve  of  General  Washington,* 
and  the  son  of  John  Augustine  Washington,  General 
Washington's  younger  brother.  Judge  Washington 
had  just  arrived  and  taken  lodgings  at  the  same 
house.  I  soon  found  that  he  was  easy  in  his  manners, 
and  affable,  unaffected,  unpretending,  and  as  far  as 
possible  from  stateliness.  I  could  hardly  believe  that 
he  was  a  Judge  of  the  highest  Court  in  the  land. 

Though  I  was  many  years  younger  than  he  was, 
and  but  a  law-student  at  the  time,  he  permitted  me 
to  become  acquainted  with  him,  and  very  soon  to  be 
without  restraint  in  my  intercourse  with  him.  Upon 
the  common  topics  of  conversation  I  found  that  I 
knew  about  as  much  as  he  did ;  and  it  was  this,  even 
more  than  his  kind  manners,  that  made  me  feel  at 
ease  with  him.  When  I  knew  him  better,  and  was 
in  after  years  more  competent  to  understand  him,  I 
came  to  know  that  he  contained  two  different  persons 

*  One  of  the  wisest  and  discreetest  letters  ever  written  by  father 
to  son,  or  by  guardian  to  ward,  was  addressed  by  General  Washington 
to  this  nephew,  from  Head-Quarters  at  Newburgh,  on  the  15th  Jan 
uary,  1783.  In  the  midst  of  war,  and  of  preparations  for  another 
campaign,  notwithstanding  the  negotiations  for  peace,  this  admirable 
man  gave  his  thoughts  and  aifections  to  the  young  law-student  in 
Philadelphia;  and  imparted  to  him,  at  considerable  length,  advice 
and  admonition,  appropriate  to  that  condition,  and  worthy  to  be  re 
corded  in  letters  of  gold. — Sparks's  Writings  of  Washington,  vol.  8, 
p.  372. 


8 

in  the  same  man,  not  as  he  was  more  or  less  excited 
at  different  times,  for  I  never  knew  him  to  be  excited 
at  all,  but  as  he  was  moving  in  his  different  relations, 
private  and  pnblic ;  or,  rather,  according  to  the  nature 
of  his  intercourse  at  the  time,  personal  or  official. 

In  private  life,  and  in  general  society,  he  was  kind 
and  good-humored,  but  not  above  the  common  level 
of  educated  men.  He  was  unreserved,  and  inclined 
to  free  conversation ;  yet  his  conversation  made  little 
impression  on  the  mind,  but  that  he  was  of  sound 
judgment,  true  and  sincere,  and  altogether  unstained 
by  any  of  those  impurities  of  thought  or  language, 
which,  in  his  day,  at  least  in  this  State,  were  a  very 
common  fruit  of  Bar  associations  at  the  country  courts. 
I  have  seen  grievous  stains  of  this  nature  in  some  of 
the  Bench,  and  of  the  eminent  members  of  the  Bar, 
who  rode  the  Circuits  before  and  shortly  after  the 
adoption  of  the  Constitution.  In  his  exemption  from 
these,  he  certainly  was  more  than  an  ordinary  man  at 
that  time  of  day.  I  do  not  mean  to  say  that  his  con 
versation  was  inferior  or  commonplace;  but  it  had 
little  to  distinguish  it,  or  to  give  it  a  specific  character. 
His  reading,  except  in  the  law,  and  in  novels,  of 
which  he  became  a  most  voluminous  viva  voce  reader, 
for  the  amusement  of  his  valetudinary  wife,  did  not 
appear  to  be  extensive.  His  taste,  particularly  in 
music,  of  which  he  was  passionately  fond,  and  thought 
himself  a  judge,  was  rather  unrefined.  His  opinions, 


whenever  he  expressed  them  upon  political  topics,  or 
the  occurrences  of  the  day,  or  on  points  of  social  dis 
cussion  generally,  were  of  course  sound,  but  in  no  way 
striking,  either  by  their  acuteness,  or  novelty,  or  the 
language  in  which  he  uttered  them.  His  abstinence 
from  invidious  allusion  to  other  persons,  and  his  reni- 
tency  against  it  on  all  occasions,  became  at  length  very 
observable ;  and  so  also  the  abstemious  part  he  took  in 
conversation  about  the  life  and  opinions  of  his  great 
kinsman.  There  was  great  purity  and  delicacy  in  all 
that  he  said  and  did,  and  perfect  measure  in  his  ex 
pressions  and  actions ;  but  it  was  the  measure  and  gene 
ral  fitness  that  you  observed,  and  not  the  grace  or  the 
strength,  or  the  appositeness  and  point  of  what  came 
from  him.  Had  he  never  been  seen  but  in  mixed  pri 
vate  society,  you  would  have  said  of  him,  that  he  was 
a  man  of  pure  and  kind  affections,  of  cheerful  and  unas 
suming  manners,  fond  of  the  society  of  ladies,  though 
not  a  very  critical  judge  of  the  sex,  as  well  pleased  by 
a  man  of  little  instruction  as  by  one  of  much,  seeking 
what  would  make  the  hours  flow  smoothly,  rather  than 
what  would  give  them  a  keen  relish,  and  with  a  more 
decided  inclination  to  the  disengaged  talk  of  a  club 
supper-table,  and  the  circulation  of  a  temperate  glass, 
than  to  anything  else  upon  the  round  earth.  I  speak 
of  the  first  fifteen  or  twenty  years  after  his  judicial  ap 
pointment.  Nothing  in  this  part  of  his  life  would  have 
reminded  you,  when  he  was  not  upon  duty,  of  either 

2 


10 

his  judicial  name,  or,  except  by  name,  of  his  renowned 
uncle.  You  would  have  seen  that  he  was  a  sincere, 
true,  and  natural  man,  and  would  have  set  him  down, 
under  these  qualifications,  as  a  man  of  the  usual  intel 
lectual  qualities.  In  later  years,  in  consequence  of 
his  devotion  to  Mrs.  Washington,  then  a  valetudina 
rian,  both  in  mind  and  body,  he  very  much  diminished 
the  opportunity  of  his  friends  to  see  him  in  mixed 
society.  But  a  few  of  them  saw,  and  with  increased 
regard  and  veneration  for  him,  how  promptly  he  sur 
rendered  his  social  refreshment  to  the  call  of  his 
domestic  allegiance,  while  he  never  gave  up  to  this 
claim  even  a  vibration  of  the  pendulum  that  belonged 
to  the  hour  of  public  duty.  He  explained  himself 
to  me  once  on  this  point ;  and  he  has  more  than  once 
intimated  to  me  by  his  eye,  that  without  taking  half 
of  a  dissyllable  from  what  belonged  to  the  public,  he 
would  not  give  to  the  other  half  what  belonged  to  his 
domestic  duty.  I  will  give  this  explanation  hereafter. 

Such  was  Judge  Washington  to  external  appear 
ance  in  private  society  and  intercourse ;  and  I  believe 
that  the  appearance  represented  his  character  when 
his  robes  were  not  on  him. 

But  when  his  robes  were  upon  him,  that  is  to  say, 
when  he  was  seated  upon  his  leathern  cushion  behind 
the  desk  of  the  Court,  he  was  altogether  a  different 
person.  He  had  no  thought  of  following  Lord  Bacon's 
advice,  and  probably  he  had  never  heard  of  it ;  but  if 


11 

he  had  thought  of  nothing  else,  he  could  not  have 
followed  it  better :  "  Be  not  too  sensible  or  too  remem 
bering  of  thy  place  in  conversation,  and  private  answer 
to  suitors ;  but  let  it  be  rather  said,  when  he  sits  in 
place,  he  is  another  man."  His  carriage  "in  place" 
perfectly  became  his  station,  not  by  assuming  height, 
or  erectness,  or  breadth,  or  sternness,  but  as  if  every 
thing  was  removed  from  his  consciousness  but  the 
duty  before  him,  and  he  was  to  perform  that  under 
the  eye  and  inspection  of  Justice  herself.  Without 
the  least  apparent  effort,  he  made  everybody  see  at 
first  sight,  that  he  was  equal  to  all  the  duties  of  the 
place,  ceremonial  as  well  as  intellectual.  His  mind 
was  full,  his  elocution  free,  clear,  and  accurate,  his 
command  of  all  about  him  indisputable.  His  learning 
and  acuteness  were  not  only  equal  to  the  profoundest 
argument,  but  often  carried  the  Counsel  to  depths 
which  they  had  not  penetrated ;  and  he  was  as  cool, 
self-possessed,  and  efficient  at  a  moment  of  high  ex 
citement  at  the  Bar,  or  in  the  people,  as  if  the  nerves 
of  fear  had  been  taken  out  of  his  brain  by  the  roots. 

Judge  Washington  was  an  accomplished  Equity 
lawyer  when  he  came  to  the  Bench,  his  practice  in 
Virginia  'having  been  chiefly  in  Chancery,  and  he 
was  thoroughly  grounded  in  the  Common  Law ;  but 
he  had  not  been  previously  familiar  with  Commercial 
Law ;  and  he  had  had  no  experience  at  all,  either  in 
the  superintendence  or  the  practice  of  jury  trials  at 


12 

Nisi  Prius,  after  that  fashion  which  prevails  in  Penn 
sylvania,  and  in  some  of  the  Eastern  and  Northern 
States,  as  well  as  in  England,  where  the  Judge  repeats 
and  reviews  the  evidence  in  his  charge  to  the  Jury, 
not  unfrequently  shows  them  the  leaning  of  his  mind 
in  regard  to  the  facts,  and  directs  them  in  matter  of 
law.  And,  nevertheless,  it  was  in  these  two  depart 
ments  or  provinces,  Commercial  Law  and  Nisi  Prius 
practice  and  administration,  particularly  the  latter, 
that  he  was  eminent  from  the  outset,  and  in  a  short 
time  became,  in  my  apprehension,  as  accomplished  a 
Nisi  Prius  Judge  as  ever  lived.  I  have  never  seen  a 
Judge  who  in  this  speciality  equalled  him.  I  cannot 
imagine  a  better.  Judging  of  Lord  Mansfield's  great 
powers  at  Nisi  Prius,  by  the  accounts  which  have 
been  transmitted  to  us,  I  do  not  believe  that  even  he 
surpassed  Judge  Washington ;  and  I  will  refer  to 
certain  of  Judge  Washington's  very  striking  qualities, 
which  will  enable  others  to  comprehend  the  grounds 
of  my  opinion,  if  they  do  not  fully  show  all  the  causes 
of  his  superiority.  Be  it  observed,  however,  that 
Judge  Washington  never  held  a  Court  of  Nisi  Prius, 
properly  speaking,  as  the  constitution  of  his  Court 
did  not  admit  of  it ;  but  held  jury  trials  in  bank,  to 
outward  appearance  in  the  same  manner  as  Courts  of 
Nisi  Prius  are  held  in  Pennsylvania. 

One  fundamental  faculty  for  a  Nisi  Prius  Judge  he 
possessed   in   absolute  perfection  —  it  was   attention. 


13 

This  great  faculty,  which  by  some  Judges,  and  by  some 
metaphysicians  also,  seems  not  to  be  reckoned  in  the 
category  of  faculties  at  all,  is  a  turning  difference  or 
distinction  between  a  good  and  a  good-for-nothing 
Judge  at  Nisi  Prius.  A  trial  by  jury  is  a  battle. 
With  the  Judge,  as  well  as  with  the  Counsel,  it  is,  for 
the  most  part,  now  or  never.  It  is  almost  folly  to  be 
wise  after  the  defeat,  and  it  is  therefore  stultifying 
and  criminal  to  be  torpid  or  volatile  during  the  com 
bat  ; — as  criminal  in  the  Judge  as  in  the  Counsel ;  for 
although  the  Judge  is  not  to  iight  the  battle,  he  is  in 
a  great  degree  to  award  the  victory  to  the  better 
cause,  and  even  to  assist  it,  when  negligence  or  tor 
por  would  put  it  in  jeopardy.  "  Nee  duUum  est"  says 
Quinctilian,  "  quin  plurimum  in  Jiac  parte  valeat  men 
tis  intentio,  et  velut  acies  luminum  a  prospectu  rerum 
quas  intuetur  non  aversa"  The  Judge  should,  there 
fore,  be  wide  awake  by  the  spur  of  this  intentio  men 
tis ;  for  it  is  this  power  or  faculty  that  incites  the 
memory  to  watch  and  record  the  operations  of  the 
other  faculties,  while  they  are  employed  in  perceiving, 
comprehending,  and  estimating  the  diversified  facts 
and  propositions,  and  combinations  of  both,  that  are 
presented  in  the  course  of  a  judicial  trial ;  and  which 
is  especially  indispensable  in  a  trial  by  jury.  I  do 
not  mean  to  define  the  power  in  the  abstract,  or  to 
describe  it  at  large ;  but  only  to  refer  to  it  in  relation 
to  this  one  subject.  For  the  most  part,  or  with  most 


14 

men,  it  is  not  possessed  in  much  perfection,  not  being 
trained,  as  it  might  easily  be,  to  a  considerable  degree 
of  vigor.  It  is  often,  consequently,  a  dozing  or  a  fugi 
tive  faculty,  and  ready  at  all  times  either  to  fold  its 
wings  and  fall  asleep,  or  to  lift  them,  and  escape  alto 
gether  to  another  region,  unless  the  memory,  imagi 
nation,  or  judgment  is  so  agreeably  occupied  and  en 
tertained,  as  to  detain  and  keep  it  awake,  after  being 
awakened  by  it.  It  has  a  pretty  good  school  in  the 
profession  and  practice  of  the  law ;  but  there  are  some 
dull  scholars  in  this  respect,  not  otherwise  dull  men, 
who  go  from  the  Bar  to  the  Bench.*  Its  great  school 
is  in  an  intellectual  science,  pure  metaphysics,  by  no 

*  I  have  known  one  Judge,  who  was  a  Chief  Justice  also,  of  con 
siderable  acuteness,  and  of  some  name,  who,  on  the  Bench,  did  not 
possess  the  faculty  in  any  appreciable  degree.  He  made  few  or  no 
notes  of  either  evidence  or  arguments;  and  often,  when  thought  to 
be  employed  in  noting  an  argument,  was  scribbling  caricature  faces 
upon  his  paper.  To  so  great  an  extent  did  this  faculty  fail  him, 
that,  on  one  occasion  when  he  understood  that  I  had  advised  the 
plaintiff's  suit,  but  had  not  been  retained  to  speak  in  it,  and  he  was 
not  satisfied  with  the  argument  of  the  Counsel  at  the  Bar,  he  asked 
me,  as  amicus  curice,  to  speak  to  the  only  point  of  law  involved, 
which  I  immediately  did,  rather  briefly.  Three  weeks  afterwards  I 
received  a  letter  from  him,  informing  me  that  my  argument  had  sat 
isfied  the  Court;  but  that  on  sitting  down  to  write  the  Court's  opi 
nion,  he  found  that  he  could  not  recall  it,  and  asking  me  to  restate 
it  to  him,  which  I  did.  He  adopted  it,  and  gave  credit  for  it  in  his 
printed  opinion.  Yet  the  same  Judge  at  times  delivered  quite  able 
opinions. 


15 

means  the  best  of  the  sciences  in  all  respects,  but  the 
best  in  this,  where  perceptions  and  thoughts,  and  a 
chain  of  thoughts — thoughts  transitive  and  subtle — 
are  to  be  caught  and  held  by  the  memory  as  in  a  vice, 
while  other  faculties  are  employed  in  imagining,  com 
paring,  reasoning,  and  deducing,  some  of  their  pro 
ducts  rejected,  and  some  retained  by  the  same  grasp, 
until  the  thinker  gets,  or  thinks  he  gets,  the  true 
bearing  of  all  upon  the  proposition  he  wishes  to  solve. 
This  is  the  true  school,  and  is  all  carried  on  within  the 
chambers  of  the  mind,  where  there  is  no  light  unless 
attention  kindles  it,  and  no  hold  of  anything  unless 
attention  stimulates  the  memory  to  grasp  it.  There 
is,  in  fine,  no  memory  and  no  durable  perception 
without  it.  But  Judge  Washington  had  no  schooling 
in  this  science.  He  was  not  a  metaphysician,  except 
so  far  as  a  thinking  lawyer  must  be  to  some  extent, 
whether  he  will  or  not;  and  I  do  not  recollect  to  have 
heard  or  read  a  word  of  metaphysics,  or  of  any  other 
intellectual  science,  except  the  mixed  metaphysics  of 
the  law,  that  had  come  from  his  lips  or  his  pen. 
Attention  sprung  from  his  head,  full  grown,  at  least  as 
truly  as  Minerva  from  Jupiter's ;  or  he  had  trained  it 
up  from  infancy  in  some  way  of  his  own.  He  pos 
sessed  the  power,  as  I  have  said  before,  in  absolute 
perfection.  I  derive  my  knowledge  of  it  from  more 
than  twenty  years'  practice  in  his  Court  at  its  regular 
semi-annual  sessions  of  two  months  each,  and  it  con- 


16 

tinned  to  be  to  the  last,  as  much  a  matter  of  surprise 
and  admiration  with  me,  as  at  the  first. 

In  addition  to  this,  he  had  a  great  quickness  and 
accuracy  of  apprehension.  I  have  known  a  very  emi 
nent  Judge,  who  could  not  take  in  the  full  meaning  of 
a  paper,  while  Counsel  was  reading  it  to  him  at  the 
Bar,  but  must  read  it  himself;  and  other  Judges, 
who  could  not  trust  themselves  to  listen  to  a  witness, 
taking  a  short  note  of  what  he  said,  but  must  make 
him  repeat  material  parts,  that  he  might  write  them 
down  with  some  minuteness.  Washington  never  in 
terrogated  a  witness,  nor  asked  Counsel  to  repeat 
what  he  had  said,  and  but  rarely  called  for  documents 
after  they  had  been  read  to  him.  He  caught  the  im 
portant  parts  in  a  moment,  and  made  a  reliable  note 
of  them,  before  the  Counsel  was  ready  to  proceed  with 
further  testimony. 

He  had  a  most  ready  command  of  precise  and  ex 
pressive  language,  to  narrate  facts  or  to  communicate 
thoughts,  and  a  power  of  logical  arrangement  in  his 
statements  and  reasonings,  which  presented  everything 
to  the  Jury  in  the  very  terms  and  order  that  were 
fittest,  both  for  the  Jury  and  for  the  Counsel,  to  ex 
hibit  the  whole  case.  A  Jury  never  came  back  to  ask 
what  he  meant,  and  Counsel  were  never  at  a  loss  to 
state  the  very  point  of  their  objection  to  his  opinion 
or  charge,  if  they  had  any  objection  to  make. 

He    maintained,  by  his   equanimity,   a    calm    and 


17 

equable  temper  in  all  parts  of  the  Court.  If  a  spark 
flew  out  upon  any  occasion,  it  either  went  out  of 
itself,  at  once,  or  it  was  extinguished  by  a  look  from 
him — a  look  of  half  surprise,  and  with  a  little  more 
than  usual  dignity  of  air,  as  if  he  alone,  and  not  the 
spark,  was  to  be  attended  to.  He  never  interrupted 
Counsel — he  never  expressly  told  them  that  they  had 
labored  a  point  sufficiently,  or  that  he  wished  them  to 
consider  another  matter  more,  or  that  they  were  wast 
ing  time.  But  when  that  happened,  his  eye  would 
have  an  expression,  and  occasionally  he  would  give  a 
short  lift  of  the  head,  which  they  who  saw  much  of 
him  understood  perfectly,  and  which  said  as  much  of 
his  thoughts  of  what  was  going  on,  as  he  inclined  to 
say.  Beside  him  there  sat,  during  nearly  all  his  life, 
a  most  pleasant  District  Judge,  Richard  Peters,  many 
years  his  senior,  a  very  good  Admiralty  Judge,  but  much 
disposed  to  leave  the  watch  on  deck  in  all  weathers  to 
his  sleepless  colleague,  putting  forth  now  and  then  for 
his  refreshment  somefacetia  or  other — pun,  quip,  crank, 
or  quiddit — for  which  he  was  very  famous.  Some 
Judges  would  have  looked  the  graver  for  this,  and 
some  would  have  been  decomposed  by  it ;  but  it  was 
delightful  to  see,  how  a  very  slight  ripple  on  the  face 
of  Washington,  would  show  that  the  breeze  had  struck, 
and  only  just  struck,  and  passed  him,  without  affect 
ing  in  the  least  the  trim  of  his  sails,  or  his  course. 
From  the  beginning  to  the  end  of  a  trial,  unless  there 

3 


18 

was  an  appeal  to  him  on  a  question  of  evidence  or  the 
like,  he  was  perfectly  silent,  and  constantly  attentive, 
up  to  the  very  moment  of  delivering  his  charge  to 
the  Jury,  and  he  was  ready  to  do  this  at  the  next 
moment  after  the  concluding  Counsel  sat  down. 

These  are  some  of  the  faculties  of  Judge  Washing 
ton,  which  I  had  in  mind  when  I  referred  to  his 
extraordinary  abilities  as  a  Judge  at  Nisi  Prius.  I 
must  not  be  understood  to  mean  that  there  was  a 
falling  off,  either  of  the  faculties  themselves,  or  in  the 
manifestation  of  them,  at  the  hearing  of  arguments 
upon  mere  questions  of  law :  quite  the  reverse ;  but 
the  field  for  exhibiting  them  in  perfection  was  the 
jury  trial. 

And  with  this  apparatus  of  powers  or  instruments, 
and  a  great  fund  of  legal  knowledge  to  work  with,  it 
cannot  be  very  difficult  for  any  one  to  see  him,  as  I 
now  see  him,  beginning  a  jury  trial,  seated  on  that 
leathern  cushion  I  have  spoken  of,  with  his  box  of 
rather  Scotch  snuff  within  his  reach.  It  may  be,  if 
you  please,  a  cause  of  great  moment  and  expectation, 
of  much  complication  in  point  of  evidence,  and  of  some 
difficulty  and  novelty  in  point  of  law;  witnesses  to  be 
examined  viva  voce  at  the  Bar ;  depositions  taken  under 
commission,  and  written  contracts  and  correspondence, 
to  be  read ;  perhaps  orders  in  council,  or  French 
decrees,  by  which  England  and  France  so  much  en 
riched  the  Bar,  and  puzzled  the  Bench,  and  impover- 


19 

ished  the  Insurance  Companies,  in  former  days.  It  is 
all  the  same  to  him.  There  does  he  sit  five  hours,  per 
haps  six,  without  once  leaving  that  chair,  or  changing 
his  position  in  it,  or  ever  taking  his  eye — that  bright, 
steady,  single  eye — from  the  Counsel,  or  the  witness 
that  is  on  the  floor,  except  to  make  a  short  note  of 
the  argument  or  the  evidence,  or  to  take  a  pinch  of 
half  Scotch  snuff.  During  all  this  time,  and  so  from 
day  to  day,  if  the  trial  shall  last  a  week  or  even  longer, 
he  will  never  interrupt  the  speaker,  or  the  reader,  or 
the  witness ;  nor  disclose  to  the  observer,  by  more  or 
less  attention,  or  in  any  other  way,  that  the  speaker 
is  acceptable  to  him,  or  otherwise,  or  is  speaking  to  a 
man  who  has  an  opinion  or  judgment  of  his  own.  He 
may  smile  at  what  Judge  Peters  whispers  at  his  ear, 
and  go  on  as  before.  He  may  lift  his  head  half  an  inch 
at  a  spark,  and  lower  it  again.  He  may  possibly  put 
his  right  leg  over  his  left,  after  his  left  knee  has  been 
uppermost  for  two  hours.  He  will  take  short  notes, 
and  then  look  and  listen  to  the  last ;  and,  if  need  be, 
on  the  very  close  of  the  last  speech,  he  will  place 
before  the  Jury,  this  complicated  case  of  fact  and  law 
and  contradictory  evidence,  parol  and  written,  so 
clearly,  in  such  lucid  order  of  parts,  and  with  such 
masterly  instructions,  adverting  to  all  that  Counsel  had 
urged,  and  which  any  one  would  think  it  material  to 
notice,  that  it  will  have  almost  the  air  of  inspiration. 
I  have  seen  the  same  thing  done  many,  many  times ; 


20 

and  never  heard  a  suggestion  from  anybody,  that  he 
was  either  too  concise,  or  too  full,  or  in  the  least  de 
gree  deficient  or  partial.  His  arrangement  of  the  evi 
dence  in  his  charge,  and  of  the  reciprocal  bearing  of 
the  parts,  was,  of  itself,  an  argument  for  the  side  he 
favored,  and  he  would  sometimes  manifest  his  leaning 
rather  more  clearly,  by  his  emphasis  on  certain  parts  ; 
but  he  never  expressed  a  direct  opinion  upon  the  evi 
dence,  to  rule,  still  less  to  overrule,  the  fair  judgment 
of  the  Jury  upon  the  whole  evidence.  Upon  the  law 
he  was  explicit,  distinct,  and  precise ;  and  if  there 
was  nothing  but  law  in  the  case,  he  would  hold  the 
Jury  inexorably  to  that,  until  the  opinion,  if  neces 
sary,  should  be  reviewed,  on  a  motion  for  new  trial. 

If  he  was  ever  disposed  to  practise  a  little  art  upon 
the  Bench,  which  did  sometimes  happen  when  the 
Court  was  hearing  law  arguments,  though  I  never 
saw  it  when  a  Jury  was  before  him,  it  was  the  giving 
his  complete  attention,  and  with  some  more  show  of 
deference  than  was  usual  in  him — for,  in  general,  he 
had  little  of  that — to  an  unsound  argument,  that  was 
pressed  upon  him  with  confidence  and  positiveness, 
perhaps  the  more  from  his  seeming  to  receive  it 
kindly;  and  then,  especially  if  it  came  from  Counsel 
who  ought  to  have  known  better,  he  would,  as  a 
huntsman  serves  a  hound  who  opens  vociferously  upon 
a  wrong  scent,  take  the  offender  by  the  neck,  give 
him  half  a  dozen  sharp  lashes,  and  leave  him  to  re- 


21 

cover  himself  at  his  leisure.  This,  it  is  true,  was 
rarely  done,  and  never,  unless  the  punishment  was 
due,  and  never,  also,  but  in  such  a  manner  as  to  be 
without  personal  offensiveness — the  argument,  and 
not  the  speaker,  being  treated  as  the  delinquent.  He 
could  be  very  sarcastic  and  severe,  but  this  was  far 
from  his  general  bearing.  It  required  but  an  example 
or  two,  as  may  be  supposed,  to  make  all  the  Bar  very 
careful  of  what  they  said  to  him,  and  much  more 
attentive  to  their  argument  than  to  his  manner  of 
receiving  it. 

I  have  said  that  he  was  inexorable  in  holding  the 
Jury  to  his  opinion  in  point  of  law,  when  there  were 
no  disputed  facts  in  the  cause.  I  recollect  one  memo 
rable  instance  of  it.  An  action  of  ejectment  was 
tried  before  him,  in  which  the  question  was,  whether  a 
devise  carried  an  estate  tail  with  a  remainder  in  fee,  or 
an  estate  in  fee  simple  with  an  executory  devise  in  fee. 
The  evidence  was  altogether  confined  to  the  will,  the 
pedigree  of  parties,  one  or  two  mesne  conveyances, 
and  the  defendant's  possession,  no  part  of  which  was 
disputed,  nor  admitted  of  dispute.  The  cause  was,  for 
certain  reasons,  argued  at  length  in  the  presence  of  the 
Jury ;  and  at  the  close,  Washington  declared  explicitly 
and  pointedly,  that  his  opinion  was  with  the  plaintiif, 
and  charged  the  Jury  that  their  verdict  should  be  for 
the  plaintiff.  The  Jury  went  out,  and  staid  out  till 
the  next  morning,  and  then  returned  with  a  verdict  for 


22 

the  defendant.  The  same  had  happened  once  or 
twice  in  the  Supreme  Court  of  the  State,  upon  the 
same  title,  in  consequence  of  what  was  said  to  be  the 
hardship  upon  the  party  in  possession.  While  the 
Jury  were  leaving  the  Box  to  separate,  I  moved  the 
Court  for  a  rule  to  shew  cause  why  a  new  trial  should 
not  be  granted.  Washington :  "  Let  the  verdict  be 
set  aside.  Where  a  case  contains  no  matter  of  con 
troversy  but  what  is  matter  of  law,  I  do  not  ac 
knowledge  that  the  Jury  have  any  discretion  but  to 
find  a  verdict  in  conformity  to  the  charge  of  the  Court 
upon  the  law."  He  said,  in  rather  a  lower  tone,  that 
he  would  do  so  a  hundred  times  running  in  the  same 
kind  of  case;  and  for  this  he  was  pretty  roundly 
censured  in  a  newspaper.  When  the  paragraph  was 
shown  to  him,  he  said,  and  with  an  expletive  that  he 
never  used  in  later  days,  "  I  would  set  it  aside  a  thou 
sand  times." 

While  his  powers  were  in  their  vigor,  every  cause 
that  could  be  carried  into  his  Court,  was,  without  fail, 
carried  there,  if  the  Counsel  had  confidence  in  his 
cause,  such  was  the  satisfaction  of  the  Bar  and  people 
with  his  administration  of  the  law,  and  with  the 
Juries  of  that  Court  under  his  supervision ;  and,  al 
though  some  of  his  decisions  were  reversed  upon 
appeal  or  writ  of  error,  yet  the  great  body  of  them 
was  acquiesced  in ;  and  it  should  be  remembered,  that 
reversal,  especially  by  a  divided  Court,  is  not  an  in- 


23 

fallible  proof  of  error,  except  for  the  disposal  of  the 
very  cause.  "  Sed  victa  Catoni"  I  know  to  have  been 
true  of  himself  in  regard  to  some  reversals,  and  of  the 
Bar  in  regard  to  several.  For  more  than  twenty-five 
years  the  Circuit  Court  was  a  model  for  judicial  ad 
ministration.  There  was  rule  for  all  that  was  done, 
and  for  all  that  was  not  done.  Causes  were  tried  or 
postponed  according  to  the  rules  of  practice ;  and  the 
consequence  was,  that  Counsel  were  always  ready  for 
trial,  or  ready  with  a  legal  reason  to  the  contrary. 
Judge  Washington  during  this  period  would  have 
looked  as  with  both  his  eyes,  if  postponement  or  de 
lay  had  been  asked  upon  the  ground  that  a  colleague 
was  engaged  in  another  Court.  And  yet  no  one 
suffered  by  the  system.  The  machine  was  closely 
geared,  but  it  worked  with  great  truth,  and  with  the 
least  wear  and  tear  to  itself  and  to  the  suitors. 

In  the  latter  part  of  this  period,  in  civil  causes,  he 
became  very  observant  of  the  then  regular  hour  of  ad 
journment,  three  o'clock.  As  the  clock  struck  ten,  he 
was  always  found  in  his  saddle,  ready  to  begin  the  day's 
work ;  and  this  practice  was  never  changed.  Latterly, 
as  the  clock  struck  three,  he  would  immediately  order 
an  adjournment  of  the  Court,  and  rise  from  his  chair. 
On  one  occasion  I  was  in  the  middle  of  a  sentence, 
when  the  hammer  of  the  State-House  clock  fell,  and  he 

said,  with  a  smile,  half  rising  from  his  chair,  "  Mr. , 

I  will  hear  the  rest  of  that  sentence  to-morrow  morn- 


24 

ing."  I  afterwards  joined  him,  and  walked  homeward 
with  him  a  few  squares,  when  he  gave  me  the  ex 
planation  of  his  abruptness.  "  The  sound  of  that 
clock,"  he  said,  "  is  as  distinctly  heard  by  Mrs.  Wash 
ington  at  our  lodgings,  as  it  is  heard  by  us  in  the 
court-room ;  and  if  I  am  not  in  her  parlor  within  five 
minutes  afterwards,  she  imagines  that  some  evil  has 
happened  to  me,  and  her  nerves  are  disordered  for 
the  rest  of  the  day.  Their  condition  is  at  all  times 
bad,  but  then  it  becomes  much  worse.  In  general,  I 
give  the  whole  of  the  evening  to  reading  aloud  to 
her  such  books  as  will  amuse  and  interest  her,  until 
drowsiness  comes  on.  I  look  at  neither  book  nor 
paper  in  the  cause  until  the  next  morning,  and  then, 
by  early  hours,  I  endeavor  to  redeem  the  time." 
After  this,  the  like  occurrence  happened  more  than 
once,  when  a  look  and  a  slight  inclination  of  the  head, 
were  all  that  preceded  the  order  to  "  adjourn  the 
Court."  We  all  came  to  understand  it.  The  pre 
caution  in  regard  to  Mrs.  Washington  was,  I  have  no 
doubt,  necessary.  They  were  without  children,  and 
she  uniformly  attended  him  upon  his  Circuit.  When 
his  death  occurred,  in  Philadelphia,  it  broke  her 
down ;  and,  though  she  attempted  to  get  home,  when 
his  remains  were  attended  to  Mount  Vernon,  she  died 
upon  the  road. 

With  the  exception  of  the  session  in  which  he  died, 
there  was  but  one  instance  in  his  judicial  life  in  which 


25 

he  failed  to  attend  the  Circuit  Court,  and  to  continue 
to  preside  in  it  until  his  calendar  was  disposed  of. 

General  Washington  devised  Mount  Vernon,  and  a 
large  part  of  that  estate,  to  Bushrod  Washington  in  fee 
simple,  after  a  life  estate  to  Mrs.  Washington  in  all  his 
real  and  personal  property,  which  included  his  slaves. 
To  the  slaves,  he  gave  their  freedom  after  Mrs.  Wash 
ington's  death,  this  postponement  of  emancipation 
being  ordered  in  consequence  of  their  intermarriage 
with  the  dower  slaves  of  Mrs.  Washington's  first  mar 
riage,  who  were  not  at  his  disposal.  The  provisions 
of  General  Washington's  will  were  very  benevolent  in 
regard  to  these  slaves ;  but  there  was  no  provision 
in  it  for  their  removal  in  a  body  to  a  free  State., 
and  on  the  contrary,  there  was  a  provision  that  none 
of  them  should  be  sold  or  transported  out  of  the  State 
of  Virginia.  His  will  and  death  preceded  by  several 
years  the  practice,  or  the  suggestion,  of  colonization 
in  Africa. 

A  very  few  years  after  General  Washington's  death, 
Judge  Washington  came  into  Court  in  the  morning, 
and  informed  Judge  Peters  arid  the  Bar,  that  he  was 
compelled  by  pressing  circumstances  to  leave  the 
Court,  and  to  proceed  to  Mount  Vernon.  It  was 
understood  that  Chief  Justice  Marshall  and  Judge 
Washington  had  been  urgently  called  to  Mrs.  Wash 
ington,  in  consequence  of  an  attempt  to  set  fire  to 
Mount  Vernon  House,  in  which  some  of  the  slaves 

4 


26 

were  thought  to  be  implicated;  and  it  was  afterwards 
said,  that  Marshall  and  Washington  advised  the  im 
mediate  emancipation  of  the  slaves,  as  a  bar  to  similar 
and  worse  attempts.  At  a  time  when  there  was  little 
or  no  experience  in  the  world  of  the  effects  of  an  un 
prepared  emancipation  of  a  considerable  body  of  slaves 
within  a  community  having  large  numbers  of  them, 
General  Washington,  from  his  predominant  preference 
of  free  institutions  and  labor,  had  made  this  testa 
mentary  provision  without  duly  estimating,  it  seems, 
the  dangers  to  the  intermediate  life,  or  to  the  slaves 
themselves.  I  understood  years  afterwards  in  the 
neighborhood,  that  no  good  had  come  from  it  to  the 
slaves,  and  that  the  State  of  Virginia  was  compelled  to 
place  restraints  upon  emancipation  within  her  limits, 
for  the  general  good  of  all. 

This  was  the  only  interruption  that  occurs  to  me,  of 
Judge  Washington's  long  and  faithful  service  in  the 
Pennsylvania  Circuit.  The  whole  event  just  noticed 
had  an  unfavorable  effect  on  his  wife's  nerves ;  but 
his  own  equal  and  rather  cheerful  temper  continued 
to  the  last,  though  the  energy  with  which  he  used  to 
despatch  business,  or,  to  speak  more  accurately,  the 
working  of  the  fine  judicial  machine,  of  which  he 
was  the  motive  power,  became  less  regular  in  a  few 
of  his  latest  years,  whether  because  his  own  force  was 
impaired,  or  because  resisting  forces,  which  have  since 
done  some  mischief  to  our  Courts,  had  increased, 


27 

it  was  not  easy  to  ascertain.  He  was  always  con 
scientious,  wakeful,  and  true  ;  and  for  a  large  portion 
of  the  last  half  of  his  life,  he  was  sustained  and  ele 
vated  in  the  performance  of  all  his  duties,  by  a  reli 
gious  profession,  openly  made  in  the  Protestant  Epis 
copal  Church,  and  by  him  constantly  observed. 

I  have  never  thought  that  his  Reports  of  his  own 
decisions.,  did  him  entire  justice,  while  they,  in  no 
adequate  manner  at  all,  fully  represent  his  judicial 
powers,  or  the  ready  command  he  held  of  his  learning 
in  the  law.  They  were  for  the  most  part  written  out 
in  his  note-books,  calamo  currents,  as  they  are  now 
printed ;  and  besides  being  the  fruit  of  less  labor  than 
they  deserved,  he  was  by  no  means  as  good  a  writer 
as  he  was  an  extempore  speaker  in  the  law.  His  pen 
was  never  so  expressive  and  pointed  as  his  tongue. 
But  they  nevertheless  showed  very  considerable  learn 
ing,  perfect  loyalty  to  the  law,  and  are  perhaps  of  as 
much  authority  as  the  decisions  of  any  court,  not  of 
final  jurisdiction,  can  pretend  to.  They  are,  I  believe, 
the  imprint  of  the  first  and  only  draught  that  he  made 
of  them.  His  practice,  after  he  had  excogitated  the 
matter  to  a  conclusion  by  such  reasoning  as  satisfied 
him,  was  to  put  his  reasons  into  words  upon  his  little 
blank-book,  with  more  attention  to  the  reasons  than 
to  the  words,  and  they  were  then  at  the  service  gene 
rally  of  those  who  wished  to  copy  them.  And  I  re 
collect  one  instance  in  which  the  conscientiousness  of 


28 

his  reasoning  was  exemplified  by  a  remark  in  the 
course  of  his  page,  pretty  much  to  this  effect :  "  But 
this  reasoning  will  carry  me  to  a  conclusion  directly 
opposite  to  that  which  my  mind  had  before  arrived  at ; 
nevertheless  I  shall  follow  it."  And  he  did  follow  it, 
and  did  come  and  adhere  to  that  opposite  conclusion. 
Such  also  was  his  course  in  the  open  court.  If  he  had 
expressed  to  the  Jury  a  clear  and  unqualified  opinion 
upon  the  law — and  his  opinions,  so  expressed,  were 
generally  unqualified — this  in  no  degree  prejudiced 
his  attention  to  a  subsequent  argument,  nor,  if  that 
argument  changed  his  opinion,  prevented  his  declaring 
it  frankly,  and  with  apparent  satisfaction.  How  rare 
is  this  quality  among  Judges  in  general,  and  how  irre 
fragable  a  proof  it  is,  both  of  a  strong  mind,  and  of  a 
most  honest  one ! 

I  may,  I  hope,  be  permitted  .to  say,  that  to  the  judi 
cial  accomplishments  of  learning,  attention,  prompt 
ness,  steadiness,  courage,  and  incorruptible  faith,  he 
acquired  a  characteristic  in  his  long  service  in  Phila 
delphia,  which,  if  more  limited  in  its  demonstrations 
and  range,  was  at  least  as  attractive  as  any  that  he 
showed,  to  those  who  were  his  subministers  in  the 
service, — a  warm  affection  for  the  Bar  of  Philadelphia. 
He  manifested  this  especially  at  the  Bar  of  the  Supreme 
Court  of  the  United  States,  where  it  was  certainly  no 
disadvantage  to  Counsel  in  his  time  that  they  were  of 
the  Philadelphia  Bar.  Of  the  younger  members  of 


29 

the  Bar  he  used  to  speak  as  "  his  children ;"  some 
times  he  called  them  "  his  hoys ;"  and  he  used  to  make 
his  boast  of  them,  much  more  than  any  of  them  would 
do  for  themselves.  He  referred  to  them  as  men  who 
to  the  usual  intellectual  qualifications  for  the  Bar, 
added  the  higher  qualification  of  integrity,  profes 
sional  and  personal.  And  the  praise  from  him  was 
as  high  as  possible,  for  he  was  not  given  to  demon 
strations  of  this  sort,  and  he  was  as  true,  honorable, 
and  conscientious,  as  the  great  Washington  himself. 


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